Courts Notice That CAN SPAM Isn't Supposed To Be A Tool For Individuals

from the sit-down-and-accept-your-spam dept

When the CAN SPAM law was first passed, there were a number of complaints about the bill, including the fact that only the FTC or an ISP were allowed to bring a lawsuit under the bill. Over the years, a number of "spam fighters" have used some loopholes to basically pretend they were an ISP (or set up a really minor ISP business) in order to then sue spammers under the law. However the Fourth Circuit Appeals Court may be putting an end to that practice after dismissing a case because the plaintiff wasn't a real ISP. Other courts may interpret the law differently, but it certainly could limit the ability of individual spam fighters to keep using CAN SPAM as a weapon against spammers. Of course, this is exactly what Congress intended. When CAN SPAM was first put in place, it really was designed not to prevent spam, but to legalize it for direct marketers. It was, really, pointing out what rules direct marketers needed to follow in order to keep spamming. And, for that to work, it meant not having to deal with pesky lawsuits from individuals who are annoyed by spam. So, the court ruling in this case is probably exactly right in terms of what Congress intended. It's just not what most of us would have liked.

Reader Comments

Well...

Like someone said earlier today; no one seems to be taking the supermarkets to court for all the crap they're dumping in our postboxes daily. We got used to junkmail and eventually we'll deal with email spam the same way we deal with junkmail: whistle through our teeth and throw it in the garbage.

Re: But we should

complain about the junk mail. There are many reason to stop it. Who uses it? Nobody. Think of all the tree. (I'm no tree hugger). I have missed mail because it got mixed in with all the junk I get and don't want.

Re: Re: But we should

Re: Well...

Like someone said earlier today; no one seems to be taking the supermarkets to court for all the crap they're dumping in our postboxes daily.

Most people get at most a half-dozen pieces of junk mail at a time. It's really easy to glance through it and toss what you don't want. Unless, of course, this happens to you.

We got used to junkmail and eventually we'll deal with email spam the same way we deal with junkmail: whistle through our teeth and throw it in the garbage.

Some people get several hundred spam emails per day. You're telling me that you're gonna whistle though your teeth for the couple of hours that it takes to wade through hundreds of spam messages?

Honestly, the only reason that spam doesn't bother me is because I hardly ever see it. Gmail filters almost all of it out. People who are forced to use other email systems don't always have that luxury.

The first part I agree with. if people started complaining and boycotting companies that are giving money to spammers, then it would not be worth while to advertise via email.

The second part I do not. Supermarket don't send out quite and much junk mail as spammers do due to the fact that they pay the post office for every piece they send. So the cost incurred is placed on the supermarket. Usually there most people also shop at supermarket and use the coupons and do not consider this junk mail; on the other hand I've never heard of anyone say, "hey I love that spam I need more viagra". If you've ever tried to run a mail server then you would know the cost of implementing a mail system robust enough to actually accept the huge amounts of spam coming in without being brought to it's knees is high. Then to systems to actually block spam with systems like Iron Port and Symantec Brightmail can cost a company millions.

If you try to actually follow your method then you would spend hours filtering through all that mail for the real thing. To use your analogy, then my mailbox would need to be the size of a dumpster and I would need to find a post card in that mailbox full of junk mail, and sending mail would be free and it would cost you to keep the dumpster there.

Re:

Another addon to the mailbox analogy is that I have a spam blocker, as if I had the kid next door sift out all the spam for me, and only leave what I want in my mailbox.

As it is, the only spam I get with my gmail account in the inbox is the spam I unwittingly signed up for when I bought something online-- and I usually stay on the mailing list, because I'm likely to use them again.

My Junk Mail box, though, hasn't had less than 500 emails in it since the beginning of the year. :(

There should be a way to get on a "do not spam me" list just like a telemarketer's "do not call" list.

Marketing is also the "drug" of choice. As with any addict, as the (marketing) drug wears off, the solution is ever more drug. Meanwhile, the vast majority consumers are numbed out and pissed-off. Too bad that - through the "law-of-large-numbers" - there are apparently enough suckers to make spam profitable.

Well, hey - if I provide internet access to even just one person, I'm technically an ISP.

Doesn't matter - anything I get that I consider 'SPAM', well... I don't have to consider... I would never buy a product based on SPAM I receive. As a matter of fact, it could well sway me away from a product I would have bought otherwise.

If I started getting spam from Pepsi, I would most likely switch brands.

Really, it's simple - if they are low enough to spam, why would I think of giving them a credit card number?

"do not spam me" list? Oh dear...

@The infamous joe

You want a "do not spam me" list. Great - an increasing publicly available list of valid working e-mail addresses. I'm sure that spammers - who peddle porn to kids, pirated software, plummetting penny stock share advice - will be honest enough to recognise the list and remove all those people who don't want spam.

Or maybe not.

Are you the kind of person who responds to the "unsubscribe me" links and then wonders why you get even more spam?

Re:

Well, Pete, I'm glad you asked. I want a list, because, I'm on a list and I get spam, I can take legal action. Until then, as states above, I have no legal rights against spammers.

Also, I *do* click on the "unsubscribe me" buttons, for the services I've used in the past (Amazon, RedEnvelope, etc) if I don't plan on using their service anytime soon, and they stop sending the spam. The spam that doesn't make it to my inbox-- the "shady" spam if you will, I don't care about.

Though, I need to shoot back another question-- why do you think clicking the unsubscribe me link would result in *more* spam? They clearly already have my email address. The worst that could happen is that they ignore it, and the best is that they stop. Signing up for the "do not call" list didn't result in more calls, so why would spam be any different? Just askin'.

Re: Re:

I signed up for the 'Do Not Call' list for my cell phone (since it is also my home phone) and I still receive annoying phone calls from telemarketers. The only neat thing about it is I can tell them I am on the list and they either apologize and hang up or in a panic hang up. Either way, it is a good excuse to get off the phone with them.

I think the 'Do Not Spam' list is a great idea. Unfortunately though this would not mean less spam, just less Spam from the US. There would be very little you could do to stop spammers in other countries.

Re: Re: Re:

I signed up for the 'Do Not Call' list for my cell phone (since it is also my home phone) and I still receive annoying phone calls from telemarketers. The only neat thing about it is I can tell them I am on the list and they either apologize and hang up or in a panic hang up. Either way, it is a good excuse to get off the phone with them.

you need an excuse to hang up on a telemarketer? why not just hang up? if you are feeling friendly you can say "i'm not interested" or perhaps add a little profanity if you are not feeling so friendly. "i'm on the do not call list [expletive]" followed by a click is real attention getter. i have a friend that has used an airhorn to end calls with persistent telemarketers rather quickly.

telemarketers are scum, you don't have to be polite to them to get them off the phone. just hang up.

Re: Re: Re: Re:

You know, in the end telemarketers are just people trying to earn a living and me being rude might not effect me, but what about them?

I could be a complete jerk and harass these people or I could have a little class and deal with them politely. They are still human beings after all. There is no excuse to be rude and not care about other people's feelings. People like you are why the world is as crazy as it is these days.

Re: TheDock22

You know, in the end telemarketers are just people trying to earn a living and me being rude might not effect me, but what about them?

no they are not. i stated before that telemarketers are scum and they deserve whatever harassment they get. if you don't like being called scum, get a different job. if you don't want people to be rude to you on the phone, stop calling them during dinner.

I could be a complete jerk and harass these people or I could have a little class and deal with them politely.

people who have class get stepped on by people who don't.

They are still human beings after all. There is no excuse to be rude and not care about other people's feelings.

telemarketers are not human beings, they are scum. calling people to sell bullshit is rude and does not take into consideration my feelings about not being disturbed... especially a business where my number cannot be put on a do not call list. the golden rule is to do unto others as you would have others do unto you. if you do something rude like call me to hawk something, then you deserve to have something rude done to you in return. if telemarketers don't care about my feelings, why should i care about theirs?

Re: Re: Re:

Don't hang up or let them off the phone. When they ask if Tom is there I say yes, just one second and set the phone down. Let them sit on the line as long as they will so they don't call some one else. The longer they stay on the line the funnier it gets.

Re: Re:

@The infamous Joe

Do tell me how you would take legal action against an anonymous Russian or Chinese pill spammer who has used someone's hacked PC to send out junk mail to you. We'd all take legal action if we could 100% be sure of who the sender was. Funny thing about spammers is - they lie about who they are and/or don't tell who they are.

Amazon and RedEnvelope aren't spamming. Spam is when you didn't ask for it. Amazon are very stringent, they're a legitimate business, and their mailings are actually wanted by people.

Clicking on an unsubscribe link in a spam tells the spammer that you have read their mail, so you're effectively telling them that your e-mail address works. So they send even more spam, and sell your address to other spammers. You actually get less spam if you ignore the unsubscribe link. I speak from experience. And you also should disable images downloading in your webmail/Outlook. Some of these images are tagged with unique numbers so the spammer can work out if you've definitely looked at their message.

NEVER let a spammer know you're paying attention to their messages - they will always send more and sell your address onto friends. This is probably the most common advice on the internet, I can't believe you didn't know this!

'Do not call' lists work under a system where initiating a contact to someone costs the 'sender' some money.

With spam, well, sending an e-mail to someone doesn't really cost anything substantial. It's so easy to do. That's why so much spam e-mail is sent. And as I've detailed, spammers are liars - they send porn adverts to kids, they sell pirated software, they infect computers with viruses, they give you deliberately false advice about "rocketing share stock" - do you honestly think these people will take a blind bit of notice of a "do not spam" list? Especially when it's getting more and more difficult to identify a spammer? Get a clue!

Spammers will ALWAYS spam you. Especially if you ask them not to be spammed.

One thing...

in the comparison to junkmail in your mailbox is that the only damage that junkmail can possibly do is overflow your mailbox, no serius damage. However spam can be very costly in terms of money, identity theft, and possible pc damage.

As usual a law is passed with the intersts of corporations in mind instead of the individual.

Re: One thing...

Yeah, so sorting through my mail, throwing away the various applications for Credit Cards, Loans, Insurance Policies and Whale Fat onto the recycling pile, driving each week to the recycling centre to throw away 20 kilos of paper mail, is somehow less effort than to click the delete button with my mouse?

Look, I'm not saying electronic spam is not a scourge on our otherwise hello kitty perfect e-world, what I'm saying is that its a part of life, just like junkmail is. And the sooner you deal with it rather whine about it like Sam the Fop the sooner you can get on with your life.

Re: Re: One thing...

Look, I'm not saying electronic spam is not a scourge on our otherwise hello kitty perfect e-world, what I'm saying is that its a part of life, just like junkmail is. And the sooner you deal with it rather whine about it like Sam the Fop the sooner you can get on with your life.

I'm with you on that. Frankly I just delete and keep on going. But I also don't run a company with a mail server that may get bogged down with spam.

Email

The internet email system is a built environment. That is, it's a construct of technology. This technological construct was consciously built for communication among people.

Part of this design required reasonable limits on user behaviour. For most users, these rules made sense and they were willing to follow them voluntarily. Further, the vast majority were willing to have these rules enforced against those few miscreants who would break the social compact necessary for the designed operation of the technology.

Then came the direct marketers.

These marketers insisted that the rules did not apply to them. In their defense, most of these marketers came with a set of assumptions from postal mail. And, as Marshall McLuhan observed, people tend to understand new media in terms of old media. While the technologists insisted that postal mail was at best a loose metaphor for the ‘e-mail’ system, the marketers refused to listen. The marketers were convinced the metaphor was the reality, and resisted all the regulation necessary for the reality, but inconsistent with the metaphor.

The result has been disaster.

At this point, one of the chief benefits of email has been lost. Not that long ago, participants in a public discussion could take things into private email. Now, everyone hides their email address.

When someone receives almost fourteen thousand (13,800) emails from a single marketer, there is an obvious, serious problem. But some judges insist that people should not use the law to protect the community.

Hard filters

I have my own domain and mail server. If something gets past the SpamAssasin filters on the server and shows up in my inbox, I can just send it to the Junk Mail folder and my T-bird client remembers how to handle it in the future. I don't know what programs or clients you guys use, but I only get three or four spams a day in my e-mail. I check the Trash daily before I empty to confirm that it is spam, so I don't miss something trashed by mistake. I can't imagine how you can get 500 spams a day unless you are being way to free and easy with signing up for stuff... (most of which you may not need anyway...)

Spam vs Do Not Call

The other big difference between spam and the Do Not Call list is that you can track down who calls you on the phone. You can usually find out the person's name, their supervisor, the phone number, and the company they're calling from.
You can then complain to the FTC or your state regulatory commission who can then take action against the company.

Who are you going to complain to, about the infected zombie computer spewing out thousands of spam e-mails? Are you going to complain to some "pill4less" site in China that they're sending out spam?

Re: Spam vs Do Not Call

John,

A computer which noisily spews out a vast number of unrequested packets --no matter what protocol: SMTP, TCP, UDP or IPv4-- should be disconnected from the 'net. If the operators of the computer are unwilling to do so, then the operators of the connecting network must do so. Too much noise, and the 'net ceases to work.

If a particular country is unwilling to police the noise emanating from their 'net borders, then the necessary recourse is to embargo that country's packets.

Fortunately, in the case of China, that nation has been, albeit somewhat slowly, willing to police the operation of their network. Naturally, multinational cooperation has been impeded by language issues. But need I remind you that intentionally infecting a computer is a crime in all fifty states, and federally? We might think it overly harsh to charge a spammer's family for the bullet... but why shouldn't a spammer be extradited to China for doing something that's unlawful under everyone's laws?

Spamarchy

It's probably good that individuals can't sue 'spammers' or the courts would be under siege with petty complaints from angry people who tried to sue small businesses who forgot to take them off of their mailing list. Those types of spam messages aren't what is causing our inboxes to be overburdened today. It is the hard core spammers (i.e. prescription drugs, porn, etc.) sending massive amounts of messages and harvesting email addresses that needs to stop.

200 individual spammers are responsible for 80 percent of the spam worldwide. Let's spend the money better by actually developing a strategy to stop them. We actually know their names and faces.

Certainly in America, we need to make it a bit more difficult to sue each other rather than easier; as we tend to jump at the opportunity if someone bumps us in the hallway these days. And it costs all of us while those greedy individuals make some cash as a result of their 'pain' and 'suffering'

A Govt. of the Corps, by the Corpts and for the Co

So basically the judge said that the law wasn't "meant" to protect small providers despite what the law "says". That just seems to be another of saying that the law is only meant to protect the rich and powerful and pretty much seems to describe the whole US legal system from what I've seen. No surprise there.

The argument that free mail providers aren't “bona fide” Internet service providers could apply equally to services like Microsoft's Hotmail, Google's GMail or Yahoo Mail. "Plaintiffs are not the type of entity that Congress intended to possess the limited private right of action it conferred on adversely affected bona fide Internet access service providers," the decision said. What do you want bet that this same judge would flip-flop like a fish out of water if Microsoft, Google or Yahoo was involved? Where do you go for justice when the judicial system is this corrupt?

Spoken like someone who doesn't pay for it.

Change your mail provider moron. Don't blame me if you're too much of a dolt to solve your own problems.

It seems you are a loud-mouth Cixelsid.

I have a 'desired' level of service. SPAM requires me:

1) To dedicate time to 'solve your own problems' (VS getting paid by others to solve their problems)
2) To pay for extra bandwidth just to accept their message so I can throw it out
3) pay for disk space to store the junked messages in case the end user thinks they are not junk
4) Pay for extra processing power to determine the junk status

Do you have something useful to contribute Cixelsid? Like a list of these 'direct marketers' so I can put 'em in my access file and prevent them from doing anything more than a connection?